Naparus & Frankham (No. 2) - [2020] FamCAFC 238

FAMILY COURT OF AUSTRALIA

NAPARUS & FRANKHAM (NO. 2)

[2020] FamCAFC 238

FAMILY LAW – APPEAL – Interim Parenting – Appeals against interim parenting orders for the return of the child from Western Australia to Victoria – Recovery order – Execution of recovery order – Stay – Recusal – Apprehended bias – Prejudgment – Right of appeal – Where the appeals are futile – Where there is no practical utility in the challenges to the interim orders given the proximity of the final hearing – Appeals dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 94AAA

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Frankham & Naparus (No. 3) [2020] FCCA 1746
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Naparus & Frankham [2018] FamCAFC 190
Naparus & Frankham (No. 4) [2020] FCCA 1830
Naparus & Frankham (No. 6) [2020] FCCA 2063
Reece & Reece [2011] FamCAFC 24
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

APPELLANT:

Ms Naparus

RESPONDENT:

Mr Frankham

INDEPENDENT CHILDREN’S LAWYER:

Bowlen Dunstan & Associates Pty Ltd

FILE NUMBER:

MLC

1462

2016

APPEAL NUMBERS:

SOA
SOA
SOA
SOA
SOA

50
53
56
59
63

of
of
of
of
of

2020
2020
2020
2020
2020

DATE DELIVERED:

25 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne (via video link)

JUDGMENT OF:

Strickland, Ainslie-Wallace & Austin JJ

HEARING DATE:

16 September 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

9 June 2020;
2 July 2020;
9 July 2020;
16 July 2020; and
21 July 2020

LOWER COURT MNC:

[2020] FCCA 1746; [2020] FCCA 1830; [2020] FCCA 1892; and
[2020] FCCA 2063

REPRESENTATION

THE APPELLANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Kanarev

SOLICITOR FOR THE RESPONDENT:

Nick Graham Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowlen Dunstan & Associates Pty Ltd

Orders made on 16 September 2020

The appeal numbers SOA 50 of 2020, SOA 53 of 2020, SOA 56 of 2020, SOA 59 of 2020 and SOA 63 of 2020 be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naparus & Frankham (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers: SOA 50 of 2020; SOA 53 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Naparus & Frankham (No. 2)

Details

AGLC: Naparus & Frankham (No. 2) [2020] FamCAFC 238
Case: [2020] FamCAFC 238
Decision Date: 25 September 2020

CaseChat Overview and Summary

- **Parties, Dispute, and Court:** This case involves an appeal by Ms Naparus against various interim parenting and other associated orders made by a judge of the Federal Circuit Court of Australia. The dispute revolves around the relocation of the child from Victoria to Western Australia and the subsequent orders regarding the child's residence and visitation with the father. The appeal was heard by the Full Court of the Family Court of Australia.

- **Legal Issues:** The court was required to decide several appeals brought by the mother, including the refusal to make interim orders permitting her to remain living in Western Australia, the refusal to grant a stay of the orders, the making of a recovery order, and the refusal to recuse the primary judge. The central issues were the appropriateness of the mother's relocation, the validity of the interim orders, and the primary judge's potential bias.

- **Court's Reasoning and Outcome:** The court dismissed all appeals. The court found that the appeals challenging the making of the recovery order and the refusal to stay its execution were futile as the orders were spent and there was no utility in the appeals. Regarding the other appeals, the court held that there was no practical utility in challenging the interim orders of 9 June 2020 and the refusal of a stay, given the proximity of the final hearing. The court also dismissed the appeal challenging the primary judge's refusal to recuse himself, finding that the primary judge's comments did not give rise to an apprehension of bias. The court concluded that the primary judge was correct in refusing to recuse himself and the appeals were dismissed without any order as to costs.

- **Final Orders:** The appeal numbers SOA 50 of 2020, SOA 53 of 2020, SOA 56 of 2020, SOA 59 of 2020, and SOA 63 of 2020 were dismissed. There was no order as to costs.

Orders